Foundation Supreme Court Cases

The following links will take you to Foundation-won Supreme Court precedents, Court of Appeals precedents, other federal cases, relevant federal labor law, state Right to Work laws, and other available information resources. While this list is not exhaustive, it is an excellent resource for becoming familiar with current federal labor law as it applies to compulsory unionism.

Note: Links on this page are updated on an ongoing basis as cases are revised or as new cases or case law are established. Please check this page frequently for such updates. If you have any suggestions for additional labor-related case law or statutory law for this page, please contact us.

Foundation Supreme Court Precedent:

2018 – Janus v. AFSCME

The U.S. Supreme Court held five-to-four that non-union government workers cannot be required to pay union fees as a condition of working in public service. The Court overturned Abood, which upheld forced fees imposed on public employees to the extent that they are used for collective bargaining. Requiring public employees to pay any union fees is compelled speech and association that is unconstitutional under the First Amendment.

(Download our one sheet PDF printout on understanding your Janus rights here.)

2014 – Harris v. Quinn

The Court held five-to-four that an Illinois requirement that nonunion Medicaid-funded home-care personal assistants pay union fees violates the First Amendment. The Court refused to extend Abood, which upheld forced fees imposed on public employees to the extent that they are used for collective bargaining, to the “new situation” before it, “[b]ecause of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees.” This holding renders unconstitutional similar forced-fee schemes imposed on providers in at least thirteen other states. Significantly, much of the Court’s opinion details how the “Abood Court’s analysis is questionable on several grounds.” Among other things, the majority recognized that the “core isues” in public-sector collective bargaining, “such as wages, pensions, and benefits are important political issues.” This criticism of Abood suggests that, if a case involving actual public employees comes before the Court, a majority of the Justices would be willing to overrule Abood and hold that public-sector forced fee requirements are unconstitutional.

2013 – Mulhall v. UNITE HERE Local 355

The court of appeals held that organizing assistance an employer promised to a union in a “neutrality and card-check agreement” could be a “thing of value” that could violate the U.S. statute making it unlawful for an employer to give or a union to demand or receive any “thing of value.” The dissent suggests that the appeal was dismissed because the agreement had expired or because there was a question as to whether the plaintiff employee had standing. The dismissal left intact the Foundation’s precedential victory in the court of appeals.

2012 – Knox v. Service Employees International Union

The Court held 5-4, in an opinion by Justice Alito, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas, that “when a public sector union imposes a special assessment or dues increase, the union must provide [a notice of the purpose of the assessment or increase] and may not exact any funds from nonmembers without their affirmative consent.” The Court also held that the union could not constitutionally charge nonmembers for its expenses opposing ballot questions even if they “may be said to have an effect on present and future contracts between public-sector workers and their employers.” Justice Sotomayor, joined by Ginsburg, concurred in the favorable judgment, but agreed only that “[w]hen a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds.”

2007 – Davenport v. Washington Education Association

The Court unanimously ruled that, because unions have no constitutional right to collect fees from nonmembers, a state may require unions to obtain affirmative consent before spending nonmember public employees’ forced fees on political activities. The Court’s decision also reiterated that, as the Court had originally decided in 1949, Right to Work laws are constitutional.

1998 – Marquez v. Screen Actors Guild (SAG)

The Court held that a union does not breach its duty of fair representation “merely by negotiating” a compulsory unionism provision that says that employees must be union “members in good standing” as condition of employment without expressly explaining, in the agreement, that the National Labor Relations Act does not permit unions and employers to require that employees become formal union members. However, for the first time, the Court declared that, if a union negotiates a compulsory unionism provision, it must notify workers that they may satisfy its requirement merely by paying fees to support the union’s “representational activities” in collective bargaining and contract administration without actually becoming members.

1998 – Air Line Pilots Association v. Miller

The U.S. Supreme Court ruled 7-2, in an opinion authored by Justice Ruth Bader Ginsburg, that employees who did not agree to union arbitration procedures cannot be required to exhaust the arbitration process before challenging the amount of their fees for collective bargaining in a federal court action.

This is a complete victory in the battle against phony internal union “arbitration” schemes, long used by union chiefs to block the full impact of the Beck decision.

1991 – Lehnert v. Ferris Faculty Association

Summarizing its earlier decisions from Hanson through Ellis, the Court concluded that union activities are not lawfully chargeable to objecting non-members unless they both are “‘germane’ to collective-bargaining activity” and do “not significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop.” Applying this test, the Court ruled that objecting public employees may not be charged for litigation not directly concerning their bargaining unit, lobbying (except for ratification or implementation of their collective bargaining agreement), public relations activities, and illegal strikes. However, the Court also held that the First Amendment does not limit lawfully chargeable bargaining-related costs to the objecting employees’ bargaining unit.

1988 – Communications Workers of America v. Beck

The Court determined that Congress intended the substantially “identical” authorizations of compulsory unionism arrangements in the National Labor Relations and Railway Labor Acts “to have the same meaning.” The Court, therefore, held that the former statute, like the latter, “authorizes the exaction of only those fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'” As a result, private sector employees have the same right not to subsidize union non-bargaining activities as railway, airline, and public employees, and are entitled to the procedural protections outlined in Chicago Teachers Union v. Hudson.

Beck, Ellis, Abood, and Hudson, taken together, break down the artificial barriers between private-sector, government, and transportation workers to empower all employees to withhold forced union dues for all activities unrelated to collective bargaining.

1986 – Chicago Teachers Union v. Hudson

The Court unanimously held that First Amendment due process requires that certain procedural safeguards be established before compulsory union fees can be collected from public employees: adequate advance notice of the fee’s basis (including an independent audit), reasonably prompt impartial review of non-members’ challenges, and escrow of “amounts reasonably in dispute” while challenges are pending. Because the Court had earlier ruled in Railway Employes’ Department v. Hanson that constitutional limitations apply to the Railway Labor Act, these procedural safeguards also must be established by railway and airline unions.

In setting aside the “pure rebate” concept, the Court required that employees be provided with information supporting the union’s financial breakdown of forced dues; that those figures be verified by independent audit; and that employees have an opportunity for a prompt, impartial review of the union’s forced-dues calculations.

1984 – Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, et al.

The Court held that the Railway Labor Act not only prohibits coerced financial support of union politics and ideological activities, but also coerced support of other activities unrelated to collective bargaining and contract administration, such as organizing, litigation not concerning objecting employees’ bargaining unit, and the parts of union publications reporting on non-chargeable activities. The Court also ruled that a “union cannot be allowed to commit dissenters’ funds to improper uses even temporarily,” prohibiting “rebate” schemes under which unions collect full dues, use part for improper purposes, and only later refund that part to the employees.

This Foundation-won case signaled a closing of the Abood loophole, because a phony union “rebate” scheme is equated with an involuntary loan from an employee and is illegal.

1977 – Abood v. Detroit Board of Education

A six-member majority of the Court rejected arguments that requiring public employees to pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such is constitutionally valid, but only “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Court unanimously agreed that “a union cannot constitutionally spend [objectors’] funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.”

A Brief Outline of U.S. Supreme Court Precedent Concerning Compulsory Unionism:

1937 – Virginian Railway v. System Federation No. 40, 300 U.S. 515
and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

The Court held that compulsory collective bargaining is constitutional, but declined to address the constitutionality of exclusive representation because these cases were brought by employers, not employees forced to accept a union as their exclusive bargaining representative.

1944 – J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332
and Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342

The Court interpreted the National Labor Relations and Railway Labor Acts as prohibiting individual employees from negotiating their own terms and conditions of employment where an exclusive bargaining representative has been recognized. Constitutional questions were not raised.

1944 – Steele v. Louisville & Nashville R.R., 323 U.S. 192

The Court recognized that exclusive representation presents constitutional problems, but again ducked the issue by holding that exclusive representatives have a duty of representing non-members “fairly.”

1949 – Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525

The Court ruled that state Right to Work laws are constitutional.

1949 – Algoma Plywood Co. v. Wisconsin Bd., 336 U.S. 301

The Court held that the National Labor Relations (“Wagner”) Act permitted state Right to Work laws even before Congress passed the 1947 Taft-Hartley Act amendments.

1954 – Radio Officers’ Union v. National Labor Relations Board, 347 U.S. 17

The Court ruled that compulsory unionism agreements may not be used “for any purpose other than to compel payment of union dues and fees,” that is, that employees may not be required to be formal union members and abide by internal union rules to keep their jobs.

1956 – Railway Employes’ Department v. Hanson, 351 U.S. 225

The Court held that “union shop” agreements authorized by the Railway Labor Act are constitutional, because the only condition of employment that the Act authorizes is “financial support” of “the work of the union in the realm of collective bargaining.” The Court suggested that if compulsory dues are used “for purposes not germane to collective bargaining, a different problem would be presented” under the First Amendment.

1961 – Machinists v. Street, 367 U.S. 740

Again ducking constitutional questions, the Court ruled that the Railway Labor Act prohibits unions from using objecting nonmembers’ compulsory dues for political purposes. The Court did not clearly define political purposes, nor did it address whether unions could lawfully use objectors’ monies for nonpolitical activities unrelated to collective bargaining. Justice Black dissented and predicted that the Court’s rebate remedy would be ineffective and would have held the statute unconstitutional.

1963 – Railway Clerks v. Allen, 373 U.S. 113

The Court found that, since unions hold all pertinent facts and records, they must prove the proportions of their expenses that are lawfully chargeable to objecting nonmembers. However, the Court reaffirmed Street‘s rulings that only nonmembers who notify their union that they object are entitled to relief and that the appropriate remedies are refunds and reductions in future exactions.

1963 – National Labor Relations Board v. General Motors, 373 U.S. 734

The Court reiterated that the “union shop” is “is whittled down to its financial core,” that is, unions may require payment of initiation fees and dues as a condition of employment, but may not require formal membership.

1963 – Retail Clerks Local 1625 v. Schermerhorn, 373 U.S. 747, 375 U.S. 96

The Court held that state Right to Work laws may prohibit “agency shop” agreements under which employees are required to pay fees to unions to defray the costs of collective bargaining. In a second decision in the same case, the Court ruled that the state courts, not just the National Labor Relations Board, can enforce state Right to Work laws. (The National Right to Work Committee financed this case in the Supreme Court for the nonmember plaintiffs.)

In 1968 the National Right to Work Legal Defense Foundation was established. (Unless otherwise noted, all subsequent cases listed were brought by Foundation attorneys.)

1976 — City of Charlotte v. Firefighters Local 660, 426 U.S. 283

The Court ruled that a public employer is not constitutionally obligated to provide payroll deductions for union dues. The Foundation was not involved in this case.

1976 — Oil Workers v. Mobil Oil Corp., 426 U.S. 407

The Court held that the employees’ “predominant job situs” determines whether a state Right to Work law applies, and that seamen employed primarily on the high seas are not protected by the Right to Work law of the state in which they were hired. The Foundation filed an amicus brief urging that Texas’ Right to Work law protected the seaman.

1976 – City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167

The Court ruled that a state may not constitutionally require school boards to prohibit nonunion teachers from speaking against agency shop agreements at public meetings. The Foundation filed an amicus (friend of the court) brief supporting the nonunion teachers’ free speech rights.

1977 – Abood v. Detroit Board of Education, 431 U.S. 209

1979 — Smith v. Arkansas State Highway Employees, 441 U.S. 463 (per curiam)

The Court held that the “First Amendment does not impose any affirmative obligation on the government…to recognize [a labor] association and bargain with it.” The Foundation was not involved in this case.

1983 — Knight v. Minnesota Community College Faculty Association, 460 U.S. 1048

Without an opinion giving its reasons, the Court affirmed a lower court decision rejecting arguments that exclusive representation of public employees by a union such as the National Education Association is unconstitutional because it forces association with a political action organization.

1984 — Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271

The Court ruled that a state may constitutionally bar non-members from participating in their public employers’ “meet and confer” sessions with the employees’ exclusive bargaining representative on policy questions relating to employment, but outside the scope of mandatory collective bargaining.

1984 — Ellis v. Railway Clerks, 466 U.S. 435

1985 – Pattern Makers v. National Labor Relations Board

The Supreme Court affirmed private-sector workers’ unqualified right to resign their union membership immediately. (Not argued by Foundation attorneys, but supported with a friend-of-the-court brief filed by Foundation attorneys in agreement with the prevailing position.)

This private-sector case provides a key legal precedent for the Foundation’s legal action to establish the right of employees to resign their union membership.

1986 — Chicago Teachers Union v. Hudson, 475 U.S. 292

1988 — Communications Workers v. Beck,487 U.S. 735

1991— Lehnert v. Ferris Faculty Association, 500 U.S. 507

1998 — Air Line Pilots Association v.Miller, 523 U.S. 866

The Court ruled that non-members who do not agree to union-established arbitration procedures cannot be required to use those procedures before bringing a federal court action challenging the amount of their compulsory fees for collective bargaining.

1998 — Marquez v. Screen Actors Guild, 523 U.S. 866

The Court held that a union does not breach its duty of fair representation “merely by negotiating” a compulsory unionism provision that says that employees must be union “members in good standing” as condition of employment without expressly explaining, in the agreement, that the National Labor
Relations Act does not permit unions and employers to require that employees become formal union members. Importantly, for the first time, the Court declared that, if a union negotiates a compulsory unionism provision, it must notify workers that they may satisfy the provision’s requirement merely by paying fees to support the union’s “representational activities” in collective bargaining and contract administration, without actually becoming members.

2007 — Davenport v. Washington Education Association, 551 U.S. 177

The Court unanimously ruled that, because unions have no constitutional right to collect fees from non-members, a state may require unions to obtain affirmative consent before spending non-member public employees’ forced fees on political activities. The Court’s decision also reiterated that, as the Court had decided in 1949, Right to Work laws are constitutional.

2008 — Chamber of Commerce v. Brown, 554 U.S. 60

The Court ruled that the National Labor Relations Act preempts a state statute prohibiting companies that receive state grants or program funds from using those monies to deter union organizing. Significantly, the Court emphasized that the 1947 amendment to the Act that guarantees the right to refrain from union activities “calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization.” The Foundation filed an amicus brief that made this very point.

2009 — Locke v. Karass, 555 U.S. 207

The Court held that the First Amendment permits a local union to charge non-member public employees for national litigation expenses for other bargaining units if the litigation is related to collective bargaining or contract administration and the charge is reciprocal in nature, i.e., if the national union and other locals would similarly contribute to the cost of litigation for the non-members’ unit should the need arise. A concurring opinion by three Justices noted that the Court’s decision did not decide what “reciprocity” means or what burden a union has to establish true reciprocity, because in this case the parties assumed that reciprocity existed.

2012 — Knox v. SEIU Local 1000, 132 S. Ct. 22777.

2014 – Harris v. Quinn, 134 S. Ct. 2618.

Circuit Court of Appeals Precedents:

Other Federal Case Law:

California
Saw and Knife, 320 N.L.R.B.
224 (1995)

Federal Labor Law:

State Right to Work Laws:

NOTE: State laws are in a constant state of flux. Before relying on the text of any state Right to Work statute, you should check the most recent edition of your
state laws.

Click here for a map of Right to Work states and laws.

Other Resources:

For an excellent yet concise summary of discipline-related labor law issues, read Union
Discipline and Employee Rights, by Foundation Attorneys Rossie Alston, Jr. and Glenn M. Taubman.
For an historical perspective on the evolution of compulsory unionism in labor law, read Policy Analysis: The Permissible Use of Forced Union Dues From Hanson to Beck by Charles Baird, published by the Cato Institute.
Issue Briefing: Employees in Right to Work States provides basic information regarding the
rights of employees in Right to Work states.
Employees with sincerely held religious objections to joining or financially supporting a union will find An Employee’s Guide to Union Dues and Religious Do Nots, by Foundation attorney Bruce N. Cameron, both
informative and useful.
For a handy guide for charter school teachers and employee, read Know Your Workplace Rights: A Guide for Charter School Teachers and Employees.